The Functioning of the Judicial System in Azerbaijan and its Impact on the Right to a Fair Trial of Human Rights Defenders September 2016 Pre-publication copy This report is produced in the framework of the initiative “Increasing Accountability and Respect for Human Rights by Judicial Authorities” by the Netherlands Helsinki Committee and the Helsinki Foundation for Human Rights. For more information please refer to: www.defendersORviolators.info The publication is available online as a PDF. ISBN: 978-83-62245-58-1 Warsaw, 2016 Editor: Helsinki Foundation for Human Rights 00-018 Warsaw, Zgoda 11, www.hfhr.org.pl Design: Julianna Mahorowska Table of Contents Executive summary p. 4 Introduction p. 6 I. European standards on the independence and impartiality of the judiciary p. 8 I.1. Independence of judiciary p. 8 I.2. Impartiality of the judiciary p. 9 II. Prosecution authorities in Azerbaijan p. 10 II.1. Organization of the public prosecution service p. 10 II. 2. Selection of candidates p. 11 II. 3. Training p. 12 II. 4. Nomination and appointment of prosecutors p. 13 II. 5. Accountability p. 14 II. 6. Dismissal p. 14 II. 7. Disciplinary responsibility of prosecutors p. 15 II. 8. Conclusions p. 17 III. Organization of the judiciary p. 18 III.1. Selection of candidates p. 19 III. 2. Training p. 20 III. 3. Nomination and appointment of judges p. 21 III. 4. Probation period p. 22 III. 5. Organization of the judiciary p. 22 Judicial legal council p. 22 Constitutional court and the Supreme Court p. 25 Immunity and dismissal of judges p. 26 Remuneration of judges p. 27 Disciplinary liability p. 27 Terminating judicial appointments p. 30 Case management p. 30 Conclusions p. 31 IV. Proceedings p. 33 IV.1. Preventive measures p. 34 Detention p. 34 Prevention of leaving the country p. 38 IV.2. Trial p. 38 Use of metal cages p. 38 Openness of the hearings p. 39 Legal representation p. 40 Access to case files p. 41 Hearing the evidence p. 42 IV. 3. Defamatory public statements p. 44 IV. 5. High conviction rate p. 45 V. Conclusions p. 46 3 Executive summary Despite the fact that the Azerbaijani Constitution guarantees the balance of powers within the government’s scope of authority, the practical application of these provisions raises concern. Several civil society activists and international organizations, such as the Helsinki Foundation for Human Rights, Netherlands Helsinki Committee and Human Rights Watch, have highlighted the lack of independence of the prosecutor and judiciary from the executive branch in Azerbaijan. The government engages prosecutors and judges to discredit critical voices and uses the criminal justice system as a tool to persecute human rights defenders, journalists and NGOs. Reports of trial proceedings, during which the human rights defenders Intigam Aliyev, Rasul Jafarov, Leyla Yunus and her husband Arif Yunus, as well as the investigative journalist Khadija Ismayilova were tried and sentenced to prison, show that the prosecution of these human rights defenders lacked evidence to arrest, detain and substantiate the charges against them1. Courts usually embrace the prosecution’s (written) submissions, which, according to the ECtHR, limits the judiciary’s role to one of mere automatic endorsement of the prosecution’s requests2. According to international standards, such as the UN Guidelines on the Role of Prosecutors, public prosecutors must enjoy independence to exercise their duties. Nevertheless, the strict hierarchical relations within the Azerbaijani public prosecution service leave little space for independent decision-making of lower-rank prosecutors. Candidates must serve at least five years with the prosecutor general’s office before being appointed as a public prosecutor. This also prevents other legal professionals, such as (recently graduated) lawyers, from entering the prosecution service. Furthermore, neither the selection procedure of medium and senior prosecutors nor the dismissal process of prosecutors is merit-based. In this context, the executive branch exerts significant control over public prosecutors. First, the government has the power to appoint the prosecutor general, with the consent of parliament. Second, reasons for being removed from the profession are overly broad, which enables political authorities to arbitrarily dismiss prosecutors if they oppose instructions from their superiors or government policies in general. Another concern is the periodic report of the prosecutor general, which catalogues the topics that are discussed with the parliament and government but is kept secret. The Azerbaijani judiciary is also perceived as totally subservient to the executive branch. Although constitutional safeguards for judicial independence exist, according to which judges are bound only by Azerbaijan’s constitution and laws, in practice there are strong links between the judiciary and the government. The selection of judges, for instance, is administered by the Judicial Legal Council. The majority of its members is appointed by the government and the Council is presided over by the Minister of Justice, which gives the government significant 1 The Report on the trial observations is available at, for instance, NHC, ‘News’, <http://www.nhc.nl/news/news_2015/ Fair_trial_for_Azerbaijan___s_prisoners_of_conscience.html?id=290&highlight=+trial> accessed 12 August 2016. 2 Rasul Jafarov v Azerbaijan App no 69981/14 (ECHR, 17 March 2016); Mammadov v Azerbaijan App no 15172/13 (ECHR, 22 May 2014). 4 control over the entire judiciary. Of serious concern is in particular that when judges are appointed for the first time they only serve for a (lengthy) probation period of three years, which is contrary to international standards and criticized by the European Commission for Democracy through Law (“Venice Commission”), as this makes the judges more likely to align with the viewpoints of their superiors and the government to get re-appointed. The independence of judges in Azerbaijan is further weakened by the impeachment process of judges. The judges of the Constitutional Court are not directly selected by a purely judicial, independent and impartial body but by the President of the Republic. Furthermore, the Azerbaijani law and the legal culture of the judiciary and prosecution enable the executive branch to use the justice system to systematically persecute human rights defenders. The European Court of Human Rights, for instance, condemned this practice as clear violation of Art. 6 of the ECHR. 5 Introduction The separation of powers and a working criminal justice system are two fundamental pillars of democratic society. In particular, a well-functioning, independent judiciary is likely to protect and promote human rights, and to hold the government to account for its wrongdoings. On the other hand, a judicial system that lacks safeguards for judicial independence is less likely to uphold human rights and guarantee state accountability. In that case, the criminal justice system can be easily used to silence critical voices. In 2014-2015, an unprecedented crackdown on (members of) the civil society took place in Azerbaijan, in the course of which dozens of human rights defenders (HRDs), journalists and other critical voices were imprisoned and key human rights organizations were forced to suspend their operations. The judiciary and prosecution are increasingly engaged in the indictment and sentencing of HRDs, thereby using the criminal justice system to persecute those who oppose government policies. The separation of powers no longer exists in Azerbaijan, since the executive branch heavily infiltrates both parliament and the judiciary³. The judicial branch consists of two superior courts, the Constitutional Court and the Supreme Court, the courts of appeal, civil courts and special tribunals4. The public prosecutor office is part of the criminal judicial system. In practice, the balance of powers, as guaranteed in Azerbaijan’s constitution5, is abandoned by the government, which exerts significant power over the courts and prosecution. Furthermore, constitutional guarantees, such as protection of the civil rights of HRDs6 are not respected in practice. This includes fundamental principles, such as the right to a fair trial, particularly the presumption of innocence, the right to judicial review and ne bis in idem, which are enshrined in both the Constitution7 and the procedural laws. Prosecutions against HRDs and journalists in 2014-2015 show that the Azerbaijani judiciary failed to abide by these rules8. 3 Constitution, art. 7 para 1. 4 Constitution, art. 125. 5 Constitution, art. 7 para 2. 6 Constitution, art. 60. 7 Constitution, art. 62. 8 Cases of prosecution of human rights defenders are described in the last part of the report. 6 According to Transparency International, the most corrupt judges of Eastern Europe are those in Azerbaijan9. This was also confirmed by a report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE), pointing at the high levels of corruption within Azerbaijan’s courts which is, in combination with the lack of budgetary autonomy of the judiciary, a threat to their independence. The corruption also has a political dimension, particularly in trials against members of the opposition and HRDs. The PACE Report on the functioning of democratic institutions in Azerbaijan, for example, condemned ‘the lack of independence10 of the judiciary’ that remained ‘a concern in Azerbaijan, where the executive branch is alleged